Thursday, September 16, 2004

Blind hate

Currently in the courts, there's an interesting case out of St. Louis in which a young neo-Nazi stomped another young man to death because he mistakenly believed he was Jewish:

A man gave a Nazi salute, shouted out "White Power," and called a stranger "Jew-boy" just moments before knocking him down outside a St. Louis diner and stomping on his head with work boots, jurors were told Wednesday.

The man on trial, Kevin A. Johnson, "spewed out these racial slurs" in a burst of hatred toward the victim, Michael Schnelle, Assistant Circuit Attorney Robert Craddick said in opening statements of Johnson's murder trial.

The injuries were inflicted about 3:30 a.m. on Sept. 1, 2002, and Schnelle died of his injuries the next day, Craddick said.

Defense attorney Frederick Hawk told the jury that Schnelle was intoxicated and "belligerent" and had caused the conflict with Johnson.

"Mr. Johnson did nothing but defend himself," Hawk told the jurors in St. Louis Circuit Court. Hawk told them he was confident they would find there was no stomping.

Family members of the dead man, who declined to be identified, said Schnelle is not Jewish.

What's noteworthy about this case is that it is certainly a hate crime, since it's undeniably bias-motivated, even though the victim in fact was not Jewish.

This is reminiscent of the relatively high incidence of anti-gay hate crimes in which the victim turns out not to be gay at all. This underscores something I discussed in Death on the Fourth of July: Hate crime statutes do not create "protected categories" of persons against whom any crime becomes a "hate crime" -- common misconceptions notwithstanding. The laws, in fact, focus solely on the actions of the perpetrator -- and whether or not the crime was motivated by a religious, racial, ethnic or (in many states, though not all) sexual-preference bias. Of course, these categories cut across all parts of the population -- everyone has a race, a religion (or lack thereof), an ethnicity and a sexual preference. They actually protect everyone equally, or at least are designed to.

This case demonstrates, too, the value of the laws. Even though the victim was not actually Jewish, the perp's action was clearly an act intended to victimize the larger Jewish community in St. Louis. This was not an ordinary assault; this was a "message crime" whose purpose was to terrorize and intimidate Jews. It caused significantly greater damage, and deserves harsher punishment.

However, he's not being charged with a hate crime:

Missouri has a hate crime law, but Johnson is not charged under it. Johnson, 36, is charged with one count of first-degree murder and one count of armed criminal action. If convicted, he would face a sentence of life without parole.

Missouri has what's known as a "coattailing" bias-crime statute, the kind of law that creates a separate crime of ethnic intimidation by embedding within existing criminal codes; it designates any act already recognized as illegal as a hate crime if it's committed "by reason of" the victim's race, religion, or ethnicity. characteristics.

It may well be that, like Washington state's "standalone" malicious harassment statute, it's essentially useless in serious crimes like this. Washington's law makes malicious harassment a Class C felony, which means that it is meaningless in serious crimes, ranging from Class B assaults to murder.

In this regard, the case illustrates another facet of hate crimes: Even though most of the nation's attention to hate crimes comes in notorious murder cases like the killings of James Byrd and Matthew Shepard, hate crime laws themselves have relatively little impact on such cases. They are sentence-enhancement laws, and there isn't much enhancement you can get at the upper end (though prosecutors are known to use the laws to leverage stiffer sentences both in plea bargaining and in regular courtroom convictions). But that's relatively irrelevant to the value of the laws themselves; annually, only 2-3 percent of all bias crimes reported to the FBI are murder.

[Perhaps someone familiar with the case can write in to explain why the hate-crime statute is not being applied in this case and otherwise fill in the blanks.]

Sara Robinson has worked as an editor or columnist for several national magazines, on beats as varied as sports, travel, and the Olympics; and has contributed to over 80 computer games for EA, Lucasfilm, Disney, and many other companies. A native of California's High Sierra, she spent 20 years in Silicon Valley before moving to Vancouver, BC in 2004. She currently is pursuing an MS in Futures Studies at the University of Houston. You can reach her at srobinson@enginesofmischief.com.